SCVO Response: Scottish Government consultation on Strategic lawsuits against public participation (SLAPPs)

The Scottish Government has sought the views and experiences of stakeholders on the use of Strategic lawsuits against public participation, or SLAPPs for short. These are lawsuits or threats of legal action that engage abusive litigation tactics in proceedings which concern public participation on matters of public interest. The Scottish Government is seeking a way forward to ensure that Scotland's legal system cannot be used to stifle freedom of expression. SCVO's response, on behalf of the voluntary sector, is below.

Our response

This submission is supported by JustRight Scotland, the Human Rights Consortium Scotland, and the Scottish Women’s Rights Centre.

The Scottish Council for Voluntary Organisations (SCVO) welcomes the opportunity to engage with the Scottish Government’s consultation on Strategic Lawsuits Against Public Participation (SLAPPs).

We are providing a short response to this consultation. Rather than responding to each consultation question individually, we will seek to provide a brief overview of the impact of SLAPPs on the voluntary sector. This is informed by the targeted engagement we have carried out with sector representatives. Other respondents – such as those with a dedicated focus on freedom of expression, like Index on Censorship – will provide more comprehensive submissions, and may be more appropriately positioned to draw on international experiences, legal frameworks, as well as the experiences of those outside of the voluntary sector.

Scotland’s voluntary sector plays a vital role in advocating for social justice, amplifying marginalised voices, and holding power to account. Campaigning is a core to this. However, SLAPPs pose a threat to this important work.

The scale of the use of SLAPPs by powerful actors in our society is unknown. The limited evidence base, to date, points to the invisibility of the practice, rather than a wholesale absence. Reliably determining the scale of the use of SLAPPs is, therefore, not possible. Given that the purpose of SLAPPs is to silence, it may be that organisations are targeted and then legally prevented from speaking about their experiences due to legal impediments. This only underscores the need for action.

That SLAPPs are being exploited, however, is beyond question. Indeed, our limited engagement established very quickly that SLAPPs – or even the possibility of such action – is already having a negative impact on voluntary organisations in their day-to-day activities, as well as service-users.

In developing this response, SCVO contacted campaigning and advocacy organisations from across the sector to seek their views and experience on SLAPPs. This included:

• Living Rent, Scotland’s community and tenants’ union, whose membership includes tenants, carers, workers and residents
• The Scottish Women’s Rights Centre (SWRC), which works with women affected by abuse and violence in Scotland, with the aim of improving their access to justice and experiences of the justice system
• A national charity working to improve public health outcomes

In addition to engaging with these organisations, SCVO attended a round-table on the use of SLAPPs. Attendees included lawyers, journalists, trade union representation, Freedom of Information campaigners, and others with direct experience of SLAPPs. Learnings from this roundtable have also informed this response.

Through our engagement, several key themes emerged regarding the impact of SLAPPs:

• Legal threats used to suppress advocacy: For example, Living Rent reported repeated threats of defamation and legal action in response to peaceful protest and public communications. These threats, they say, while rarely resulting in court proceedings, are clearly intended to intimidate and silence.
• Risk of litigation impacting on activity: One organisation described how the mere possibility of legal action impacts their day-to-day activities. For example, they avoid using certain images or naming specific companies in their advocacy.
• Misuse of legal processes as a form of abuse: The Scottish Women’s Rights Centre reported instances of perpetrators of abuse using legal threats - including defamation claims and personal injury actions - as a continuation of coercive control. These tactics are often aimed at silencing victims and survivors and their supporters and can retraumatise individuals while exploiting gaps in the legal system.
• Costs associated with legal defence: The financial burden of defending against SLAPPs - especially for small or underfunded organisations - can be prohibitive. For voluntary organisations already facing significant financial challenges, the impact of a SLAPP could be catastrophic. One organisation noted that the use of SLAPP tactics by powerful actors could pose an existential threat to their work, given their limited resources.

This list is a snapshot, informed by our engagement, that demonstrates that SLAPPs are a real and pressing concern for the sector. Testimony from voluntary sector organisations confirms that SLAPPs - or even the threat of them - are already diverting precious time, energy and resources away from core work and, ultimately, support for the important services provided by voluntary organisations across Scotland.

Conclusion

SCVO is strongly supportive of anti-SLAPP legislation being introduced by the Scottish Government. This legal practice is already being exploited by those with power and wealth to silence those who seek to speak truth to power and abuse. This is a threat to community participation in our democracy. This must be addressed. We urge the Scottish Government to act decisively to protect freedom of expression, advocacy, and the democratic role the voluntary sector plays in Scotland.